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Rohan v Daman: success for Crispin Winser in DIFC Court of Appeal

Rohan & Ors v Daman Real Estate Capital Partners

In a judgment handed down today, the DIFC Court of Appeal (Chief Justice Michael Hwang SC, Deputy Chief Justice Sir John Chadwick and HE Justice Ali Al Madhani) dismissed Daman’s appeal against the judgment of Deputy Chief Justice Sir Anthony Colman.

Between December 2007 and April 2008 the Claimants entered into Sales and Purchase Agreements (‘SPAs’) for the purchase of 7 apartments in a development known as “The Buildings by Daman” within the DIFC. The Claimants had paid more than AED 8.5 million to Daman by way of deposits. The apartments were due to take 26 months to build and ought to have been completed and handed over to the Claimants by 31 July 2009. None of them were completed by then and the construction work was still far from complete by the time of the trial.

The Claimants had exercised their contractual right to terminate the SPAs and sought recovery of the monies paid to Daman together with consequential losses. Daman contended that the Claimants had not been entitled to terminate the SPAs as it was entitled to extend, and had effectively extended, the completion dates thereunder on the grounds of force majeure (unusually, the SPAs defined force majeure so as to include Daman’s contractor’s breach of contract or failure to perform). Daman relied on the extension of time determinations made by the engineer under the construction contract in attempting to establish the period of force majeure delay.

Sir Anthony Colman held that the notices relied on by Daman were ineffective and that, even if the notices had been effective, Daman could not rely on the engineer’s determinations to establish what period of delay amounted to force majeure within the meaning of the SPAs. The Claimants were awarded damages in excess of AED 12 million.

Daman appealed, contending (amongst other things) that the Judge had misconstrued the SPAs and the notices given thereunder and was wrong to hold that Daman could not rely on the engineer’s determinations.

Sir John Chadwick (with whose judgment the other members of the Court of Appeal agreed) upheld the Judge’s conclusion that Daman could not rely on the notices it had served purporting to extend the completion dates under the SPAs, thereby disposing of the appeal.

Crispin Winser appeared for the successful Claimants / Respondents, instructed by Kennedys Dubai LLP.

The Judgment is available here.

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